Final version of local zoning, affordable housing bill leaves much to be desired


Last week, LD 2003, a bill sponsored by Speaker Ryan Fecteau to reform local and state-level housing policy, passed engrossment votes in both the House and Senate, largely along party lines. This Monday, the House voted to enact the bill, and the Senate subsequently placed it on the special appropriations table pending enactment. After weeks of intense debate, behind-the-scenes negotiation, multiple iterations of the bill language, pending its funding from the special appropriations table and a Senate enactment vote, LD 2003 looks like it’s headed for passage.

Several provisions of LD 2003 were maintained from the first batch of edits, endorsed by a majority of the Legislature’s Labor and Housing Committee on April 7. It was amended before delivery to the House floor to clarify some parameters of the single-family lot density requirements. In some cases, the minimum density for single-family home lots would be two, like a duplex, or a home with one accessory dwelling unit (ADU), like an in-law apartment. If the municipality has a designated growth area, or if a development is served by public water and sewer systems, that minimum rises to four units. Subdivisions are exempt from these requirements.

It maintains the provision to guarantee a homeowner’s right to construct an ADU. Essentially, towns and cities cannot block an owner of a home on a single-family lot from building one, as long as it conforms to other municipal rules like sewer and water access and minimum setback requirements. ADUs will also be exempt from local growth caps.

The engrossed version of LD 2003 requires localities to adopt higher density minimums and lower parking minimums for projects considered to be “affordable housing.” These are residential buildings in which the developers have pledged for 30 years to limit all renters to those earning up to 80% of the median area income, and all owners to 120% of the median area income, calculated “at the time of initial occupancy.”

Municipalities must incorporate these residential allowances into their existing ordinances, so the bill funds a technical assistance program to help towns with planning and drafting. The new Housing Opportunity Program (HOP) will also leverage state dollars to help municipalities attract federal grants. While these grants could finance worthwhile investments to sustainably increase local housing capacity, they will likely come with all manner of federal strings attached.

It’s a mystery whether Mills would ultimately sign it, though it seems likely. Speaker Fecteau, in an interview on WGAN, said while he had not explicitly asked for Gov. Mills’ support on the bill, he was optimistic because the governor’s supplemental budget included funding for the technical assistance provision.

In the previous session, the governor vetoed a number of bills sponsored by democratic legislative leadership, including at least three from Senate President Troy Jackson last July. While funding for a portion of the bill exists in the current budget agreement, that does not make for an assurance of passage of the other portions of the bill.

The continued opposition to LD 2003 from a key interest group, the Maine Municipal Association (MMA), which represents the interests of towns and cities in the State House, will likely weigh on the governor’s decision. During the final throes of session, Speaker Fecteau and his legislative allies did not seem interested in gaining the MMA’s support, when on the week of April 4, both the Greater Portland Chamber of Commerce and Democratic state legislators Mike Sylvester and Victoria Morales went on the attack and accused the association of negotiating in bad faith

They alleged that the MMA, through their representative who participated in the Legislature’s zoning and land use commission, which formed the basis of Fecteau’s bill, was reneging on the recommendations she co-signed from the commission. This is an unfair characterization. There are myriad interests within the Maine Municipal Association, and specifically within its Legislative Policy Committee, to be weighed when delivering a final decision on a bill. The sponsors and champions of LD 2003 have no one but themselves to blame; the MMA, as well as other state legislators who oppose the bill, have been clear about which provisions are most objectionable.

As Tim Reiniger, a town councilor in Cape Elizabeth, argued in a recent commentary published in the Press Herald, the biggest concern for many local officials is a provision in Section 8 of the bill which declares that “A municipality shall ensure that ordinances and regulations are designed to affirmatively further the purposes of the federal Fair Housing Act…to achieve the statewide or regional housing production goal.” He points to various towns in Massachusetts, like Ipswich, which are facing the difficult choice of allowing massive housing projects to proceed right away, or face punishment from the state’s economic development agency seeking to deliver on its own housing goals.

Opponents also point out, as Reiniger does, that the bill “would give state central planners in the Maine Department of Economic and Community Development [DECD] as well as the Maine State Housing Authority unprecedented powers to establish regional production housing goals that the municipalities must enforce.” LD 2003 allows the DECD to create “routine technical” rules governing its new authority, meaning without legislative or public input in drafting.

In neither the floor debates, nor in public commentary, have sponsors of LD 2003 substantively addressed concerns of opening the door to heavy-handed federal oversight. After airing that concern multiple times, sponsors still decided to keep the problematic section. Why wouldn’t a majority of the MMA’s Legislative Policy Committee vote to oppose the bill all three times they have weighed in on it?

Some legislators and local leaders in opposition also allege that both the overt requirements and the hidden unintended consequences of LD 2003 would create a host of mandates which municipalities would have to fund. With greatly increased housing density, many towns would have to increase funding for water and sewer infrastructure, school systems, and everything in between. They point to Article IX, Section 21 of the Maine State Constitution, which states:

“the State may not require a local unit of government to expand or modify that unit’s activities so as to necessitate additional expenditures from local revenues unless the State provides annually 90% of the funding for these expenditures…This section must be liberally construed.”

Ultimately, this would be a matter settled by courts. Would a liberal construction of this passage allow the technical assistance funding currently provided in the bill to fulfill the state’s constitutional responsibility to fund 90% of the cost of requiring localities to “expand or modify” their activities? 

LD 2003—even in its significantly amended form—still leaves much to be desired in its contribution to a more cooperative state-municipal relationship to sustainable growth across the state. There may not be a better summary of this than one given by Representative Dick Bradstreet during the floor debate last week, who mentioned that the process of the bill reminded him “of the proverbial, fledgling carpenter who was learning how to build for the first time and said, ‘You know, I’ve cut this board three times and it’s still too short.’”